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Athey v. City of Peru

OCTOBER 3, 1974.




APPEAL from the Circuit Court of La Salle County; the Hon. WENDELL THOMPSON, Judge, presiding.


The plaintiffs as adjacent property owners filed a declaratory judgment action seeking to void an ordinance of the defendant City which reclassified the subject property from residential to commercial, and to enjoin its enforcement.

After plaintiffs' motion for a temporary restraining order was denied, an evidentiary hearing was held on the merits of the complaint seeking a permanent injunction. The court denied the relief sought by the plaintiffs. The trial judge in a written opinion held that the ordinance in question was a new ordinance and not an amendment to the existing zoning ordinance; that a zoning commission can be created by the passage of a resolution and not by an ordinance under the provisions of section 11-13-2 of the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-2); that members of a zoning commission are de facto officers of a municipality; that the failure of the zoning commission to submit a final report and proposed ordinance within 30 days after the final adjournment of the public hearing does not invalidate the zoning ordinance, since the procedure as outlined in section 11-13-2 of the Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-2) is merely directory and not mandatory; and that the passing of the new zoning ordinance was not an unreasonable, unwarranted or unauthorized invasion of plaintiffs' property rights. Plaintiffs appeal.

They contend that if the zoning ordinance in question is construed as an amendatory ordinance, it fails to comply with sections 11-13-14 and 11-13-3.1 of the Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-14 and 11-13-3.1), requiring passage by a two-thirds vote of the city council, since protests were filed; and if considered a new zoning ordinance, it fails to comply with section 11-13-2 of the Code (Ill. Rev. Stat. 1973, ch. 24, par. 11-13-2) because the zoning commission was not formed as required by statute. A further claim of invalidity is based upon an alleged conflict of interest of a member of the zoning commission. Plaintiffs also contend that to allow construction of a McDonald drive-in restaurant on the subject property was an unreasonable and arbitrary taking of their property rights in adjoining property and amounted to a denial of due process. They also argue that in the absence of the presentation of any evidence by the city the court should have directed a verdict for the plaintiffs.

This is the second time that the reclassification of the subject property has been before the appellate court. (See Ceresa v. City of Peru (1971), 133 Ill. App.2d 748, 755.) In our resolution of this appeal, the threshold issue is whether the zoning ordinance which reclassified the property in question (referred to as number 1699) is a new ordinance as the trial court found, which was passed by the requisite majority vote (Ill. Rev. Stat. 1971, ch. 24, par. 3-11-17); or an amendment to an existing ordinance as claimed by plaintiffs, which failed to pass for lack of the required two-thirds vote over objection.

Prior to the time of the passage of ordinance 1699 on August 25, 1971, there existed an ordinance entitled "Zoning Ordinance of the City of Peru, Illinois, 1963," referred to as ordinance number 1497. A planning commission had also been formed. On June 29, 1970, the city council of Peru approved a resolution authorizing the creation of a zoning commission. The resolution contained language expressing the purpose of amending the existing ordinance by adopting a comprehensive new zoning ordinance. After the resolution was adopted the members of the planning commission also became members of the zoning commission and assumed the same offices by their own vote and not by any other appointment. After the commission's first meeting on July 2, 1970, notice was published calling for a public hearing to be held on July 22.

The July 22 public hearing was attended by several property owners, including Mr. Kaszynski the owner of the subject property, who requested that their properties be given zoning classifications other than set forth in the proposed comprehensive amendment. The matter was adjourned until August 10 in order to hear further testimony from persons with further objections.

The final meeting of the zoning commission was held on February 10, 1971. Subsequently on March 8, 1971, chairman Biederstedt appeared personally and by letter and reported the efforts of the commission to the city council. The corporation counsel of Peru also read portions of the ordinance at that time, and again on March 22 and May 17. No final report of the zoning commission, however, was ever presented.

While no public protests were lodged at the public hearing, two petitions in opposition to reclassification of the Kaszynski property were submitted to chairman Biederstedt on June 2 and July 1, 1971. The record does not reveal whether they were also filed with the clerk of the municipality.

On August 23, 1971, the city council began consideration of the proposed amendment but because of the late hour it adjourned the matter to August 25. At that time several amendments to the proposal were discussed, including one concerning the subject property, resulting in an adoption of an amendment reclassifying that property commercial as requested. Following discussion the proposed comprehensive amendment as amended was adopted by a vote of 6 to 4. The minutes of the meeting reflect that the council expressed concern that the provision had not been passed by a two-thirds vote; and the corporation counsel was requested to write an opinion. His letter of opinion was incorporated in the minutes of the September 7 council meeting and expressed the view that the provision was a new ordinance validly adopted by a majority vote.

Although the provision had been voted on as an amendment to the existing ordinance it was often referred to in discussions as a new ordinance and the matter was further obscured by the presence of two titles. Following the corporation counsel's opinion letter, however, it was redesignated "zoning ordinance 1699."

• 1, 2 As a general rule, an amendatory ordinance does not purport to repeal an ordinance as it previously existed but merely changes or alters the original ordinance, or some of its provisions; and such portions of the old ordinance as are repeated or retained either literally or substantially are regarded as a continuation of the old ordinance, and not the enactment of a new ordinance nor the repeal of the former ordinance. (Village of Park Forest v. Wojciechowski (1963), 29 Ill.2d 435, 438.) The primary purpose of construction of ordinances is to determine and give full effect of the intent of the law-making body as revealed by the language used. (Gregory v. County of La Salle (1968), 91 Ill. App.2d 290, 296-297.) The words employed should be given their plain and ordinary or commonly accepted or popular meaning unless to do so would defeat legislative intent. Droste v. Kerner (1966), 34 Ill.2d 495, 503.

The introductory clause of ordinance number 1699,

"Whereas the City of Peru, Illinois now desires to amend comprehensively its existing ordinance by ...

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